The Exch. Bank Of Va. v. Morrale.

• Decision Date: 24 April 1880
• Citation: 16 W.Va. 546
• Court: West Virginia Supreme Court
• Parties: The Exchange Bank of Virginia v. Morrale.

16 W.Va. 546

The Exchange Bank of Virginia

v.Morrale.

Supreme Court of Appeals of West Virginia.

Decided April 24, 1880.

1. Where a bill in equity is filed setting up a lost negotiable note and

praying a decree against the maker and endorsers for the debt, &c, it is more safe, and more in conformity with what seems to be the general practice, to offer in the bill to give a proper indemnity under the direction of the court. Perhaps, however, this is not mdispensible in all cases; but this question as to cases which may hereafter arise before this court is left open for further examination and consideration.

2. But it is indispensible in such cases, whether the plaintiff in his bill offers to give a proper indemnity under the direction of the court or not, that the court shall, where it decrees for the debt, require ample indemnity for the indemnity and protection of the makers and endorsers of such note, and each of them decreed against for the debt in whole or in part; and the court should provide in its decree substantially, that the plaintiff shall take no benefit thereof, until such indemnity be given.

3. It seems, it is not necessary, in order to maintain the suit in equity in such case, that the bond of indemnity should be tendered before suit is brought; still the question of costs in the case is for the court to determine according to equity.

1. In order to maintain a suit in equity setting up a lost negotiable note or bond and praying for a decree for the payment thereof, it is indispensible, where the loss of such note or bond is controverted by the answer of the defendants, that the loss should at the hearing of the cause be established by competent and satisfactory proofs. If therefore the plaintiff in such bill fails at the hearing to establish the loss of the instrument, in such case the suit will be dismissed.

Appeal from and supersedeas to a decree of the circuit court of the county of Barbour, rendered on the 7th day of March, 1868, in a cause in chancery in said court then pending, wherein The Exchange Bank of Virginia was plaintiff, and Lair D. Morrall, Spencer Dayton. James T. Hartman and Elam D. Talbott were defendants, allowed upon the petition of said Morrall.

Hon. T. W. Harrison, judge of the sixth judicial circuit, rendered the decree appealed from.

Haymond, Judge, furnishes the following statement of the case:

On the 25th day of June, 1866, the plaintiff commenced its suit against the defendants on the equity side of the circuit court of the county of Barbour. The plaintiff filed its bill in the cause at the August rules, 1866. It is alleged in the, bill, among other things, that on the 15th day of February, 1859, defendant, Spencer Dayton, of said county, made his negotiable note, payable at four months at said Exchange Bank of Virginia, at Weston, now in the State of West Virginia, for the sum of $600.00, to defendant, James T. Hartman, and that said Hartman endorsed said note to the defendant, Elam D. Talbott; and said Talbott endorsed said note to defendant, Lair D. Morrall; and that said Morrall endorsed the same to the plaintiff; that when said note became due and payable according to the tenor and effect thereof, to wit, on the 18th day of June, 1859, the same was presented at the office of discount and deposit of the said Exchange Bank of Virginia for payment, and the defendants, Dayton, nor either of the endorsers having any funds at the said bank, the said note was not paid, and the same was then and there protested for non-payment; that the costs of protest were $2.82 which was paid by plaintiff, and that notice of said protest was immediately given to the said endorsers by the officer who made the same, by mailing copies of said notice of protest to said endorsers, and directing the same to their usual postoffices respectively; that after said note was protested for non-payment, suit was brought thereon in the circuit court of Barbour county on the common law side of said court; but before judgment could be recovered on said note, the same and all the papers connected with said suit were lost from the clerk's office of the said circuit court and have not been recovered; that no part of said note has been paid, except the sum of (173.41, which was paid on the 10th day of January, 1860. The bill makes said Dayton, Hartman, Talbott and Lair D. Morrall, defendants thereto, and prays that a decree be rendered against the said defendants for the amount of said note, the interest due thereon and charges of protest, subject to the credit aforesaid, and also contains a prayer for general relief. The bill is verified by the affidavit of R. J. McCandlish, the cashier, &c.

Subsequently the plaintiff filed an amended bill, in which it is alleged, that when the negotiable note mentioned in the original bill became due and payable, according to the tenor and effect thereof, to wit, on the 18th day of June, 1859, the same was presented at the office of discount and deposit of the said Exchange Bank of Virginia at Weston for payment; and the said Spencer Dayton, the maker of said note, nor James T. Hartman nor Elam D. Talbott nor Lair D. Morrall, the endorsers thereof, having any funds at the said bank, the said note was not paid; and the same was then and there duly protested for non-payment, to wit, on the day and year last aforesaid, &c.

General demurrers were filed to the said original and amended bills by the defendants Hartman, Morrall and Talbott which the court overruled.

In their joint answer the defendants, Hartman, Morrall and Talbott, among other things," deny that said negotiable note ever existed, or that it was endorsed by them, or that the same was protested, or that they received notice of said protest, or that said note and pro- test have been lost. The defendant, Dayton, in his an-swer admits the making of said note by him, but claims payments thereon of $173.41 on the 10th day of January, 1860, and of $30.00 on the 19th of April, 1867, and in effect denies that said note is lost.

The plaintiff took and filed the depositions of two witnesses to which I will hereafter refer. The defendant filed no depositions.

On the 7th day of March, 1868, the cause came on to be finally heard upon the bill and amended bill, answers of defendant and replications thereto, depositions and exhibits; and the court adjudged, ordered and decreed that the said defendants, Dayton and Morrall, pay to the complainant the sum of $602.82, the amount of the said note and charges of protest, with interest thereon from the 18th day of June, 1859, subject to a credit of $173.41 as of the 10th day of January, 1860, $30.00 paid April 19th, 1867, and the costs of the suit; and as to the defendants, Hartman and Talbott, the court dismissed the bill and gave them their costs against the plaintiff.

From and to this decree the defendant, Morrall, obtained an appeal and supersedeas; and thus the case is before us for review and consideration.

Frank Woods, for appellant, relied on the following authorities:

1 Story Eq. Jur. §§ 85, 86; 2 Story Eq. Jur. §, 1528; Adams Eq. §21, note; 2 Tuck. Com. §486; 17 Graft. 187; 28 Graft. 663; 3 Kent Com. §§ 94, 104; 1 Story Eq. Jur. § 89; Adams Eq. § 167.

No appearance for appellee.

Haymond, Judge, delivered the opinion of the Court:

The first and second errors assigned by the appellant are together substantially,...